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Court Says Fair Use May Hold In Some RIAA Cases
NewYorkCountryLawyer writes "In SONY BMG Music Entertainment v. Tenenbaum, the Boston RIAA case in which the defendant, represented by Charles Nesson of Harvard Law School, admitted liability at his trial, the Court has entered judgment in favor of the RIAA for the monetary award of $625,000 fixed by the jury. However, the Court left open the questions of whether the amount is excessive, and whether attorneys fees and/or sanctions should be awarded, and has scheduled further briefing of those issues. The Court granted the RIAA much, but not all, of the injunctive relief it requested. In an unusual step, the Court issued a 38-page decision (PDF) explaining in some detail the Court's views of the Fair Use defense in the context of cases like this, and indicating that there are some factual scenarios — not applicable in this particular case — in which it might have concluded that the claims were barred by Fair Use. E.g. it declined to rule out the possibility that creation of mp3 files exclusively for space-shifting purposes from audio CDs a defendant had previously purchased might constitute fair use."
Mostly the court said the defense sucked and they WOULD have been receptive to such fair use tactics but the defense didn't help them out there.
http://arstechnica.com/tech-policy/news/2009/12/how-team-tenenbaum-missed-a-chance-to-shape-p2p-fair-use-law.ars
This isn't something that applies to all future cases.
I was under the impression that space shifting from CD to "mp3" was already settled as fair use. What goes?
Courts can bloviate all they wish. You're confusing two legal concepts: The case and controversy requirement, and dicta.
A court requires an actual case with actually adverse parties.* This is the case and controversy requirement.
That said, courts can bloviate all they wish. The fancy legal term is dicta. It is not binding on any court, not even the same Court. Sometimes distinguishing between the real opinon and dicta can be tricky.
However, if the Court's reasoning is strong, other parties will incorporate it into their arguments and it will be adopted by other courts making their own decisions.
You are correct in your statement that Article III Section 2 prevents courts from rendering advisory opinions, i.e. judgements on controversies not before the court. However, courts are free to offer opinions in dicta which can guide, but are not binding, to future cases. This is all that this was.
The judge never said that fair use would be a justifiable defense for the case at hand, but that for some future case it could be a justifiable defense.
The question of if you have the CD but rather than ripping it, you download an already ripped mp3.
You are confusing a number of concepts.
1. Precedence can only be set by a court higher than the court you are presently in. Even the same judge can ignore the way he ruled on an identical case. This judge was essentially outlining all the loop holes that the defense could have used but didn't, essentially outlining every way in which the defense's lawyer failed to make a convincing argument and creating a road map for lawyers who deal with a similar case in the future.
2. Amicus curiae is a brief, submitted to an appellate court, which deals with to a specific issue in a case, tailored to the facts of the present case to persuade the court to rule in favor the the amicus curiae's position. The case today is not an amicus curiae because it was not written to the facts of a case presently being decided by a court, it is about a case that happened in the past.
This case is a good road map for defendant's attorneys to learn what not to do.
Problem now is, how does Tenenbaum get an appeal?
Well he doesn't need an appeal. The real question -- the excessiveness of the verdict under (a) copyright law and (b) constitutional law -- hasn't been decided yet. The judge had earlier indicated she would be getting to that only after judgment had been entered, and a motion to set aside the judgment had been made. She has scheduled that for a January 4th deadline, with the RIAA getting 14 days from the making of such a motion to respond.
It may wind up being the RIAA that's going to "need an appeal".
Ray Beckerman +5 Insightful
In the USA:
Unless I am greatly mistaken...in prior court cases, it was accepted on precedent that format shifting for personal use was already covered under fair-use.
Additionally, although their are some issues regarding the definition of "digital audio recording device", making a copy of a digital audio CD for private non-commercial use using a "digital audio recording device" (computers are specifically NOT covered under this) is EXEMPT from prosecution or litigation under the 1992 Audio Home Recording Act. Under the terms of the act, the industry specifically gave up all rights to litigation and or fines imperpetuity for any non-commercial analog copying and/or approved digital audio device.
Audio CD recorders and DAT recorders are specifically addressed by this and are approved devices. An audio CD recorder or standalone DVD recorder capable of ripping direct to MP3 would almost definitely be covered as well (e.g. I have a DVD DVR with an internal hard drive that has the capability to buffer a CD to it's internal hard drive and then reburn it to a new CD after transcoding it into MP3 format). As long as any audio device complies with the SCMS (Serial Copy Management System) and refuses to make copies of 2nd generation material (i.e. copies of copies) then the device is legal.
The real question is whether or not making a copy of a CD (an approved device) to an MP3 player (also almost certainly an approved device) by using a PC (a non-approved device) for the ripping/transfer is still covered. Based on past legal cases and statements agreed to by the RIAA during Senate hearings on the matter, this should be legitimate -- but it has never been ruled on directly in court.
The interesting thing about the 1992 AHRA, is that, while it is still illegal to do so, there is no legal PENALTY for making copies of an copyrighted audio CD using a standalone audio-CD recorder -- even if you are making dozens of copies and giving them to all your friends and family members. If I wanted to make 1000 copies of an audio CD and then hand them out on the street corner for the heck of it, the strongest thing they can do to you legally is ask you to cease and desist. This only applies to non-copyprotected audio CD's -- if they have copy protection on them then the DMCA comes into effect (which is an entirely different mess).
A very interesting question in the law would be on the following device -- of which one does exist but was never publicly released:
1) A standalone CD-Audio/DVD Recorder/DVR unit with network capability capable of ripping to MP3. This unit *was* an approved CD-Audio Recorder and was legal for making audio cd copies.
2) This unit fully complies with SCMS and flags any recorded MP3's with the copyright flag and will refuse to reburn second generation copies or copies that did not originate on the unit that have the copyright flag set.
3) This unit was network capable -- although the released design was originally intended for sharing DVR material to other similar players within the same household.
4) As a network capable device with a hard drive, in an unreleased version a Gnutella network client was implemented on the device. This allowed sharing of MP3's ripped onto the device and allowed downloading MP3's off of the internet.
5) In compliance with SCMS, the unit would not burn to CD any downloaded MP3 with the Copyright flag set. Any downloaded file without the Copyright flag set could be burned with impugnity (under the 1992 AHRA players are required to copy media without the copyright flag freely -- the burden of having this flag set correctly was specifically forced outside of the player).
Basically, under current law, this device would probably have been a considered completely un-litigatable network file sharing device. Unfortunately, the base device itself is no longer produced and the "interesting" version was considered too much of a lawsuit magnet to even attempt releasing.
It may wind up being the RIAA that's going to "need an appeal".
That would be good news indeed, can you expound on that a little?
Liability is a foregone conclusion, since Mr. Tenenbaum formally "admitted liability" at the trial. But damages are not.
If the Court follows traditional copyright law principles, it will hold that there was no evidence in the record from which any statutory damages award beyond $750 per infringed work is permissible, thus limiting the award to a maximum of $18,000 under copyright law.
And if the Court then follows traditional constitutional principles, it will hold that any recovery beyond $1.40 per infringed work (or total of $33.60) is unconstitutional.
If the RIAA obtains a monetary damages award of $33.60 I would expect Mr. Tenenbaum to refrain from appealing, and I would expect the RIAA to be the one to file an appeal.
Ray Beckerman +5 Insightful
I would say the expressiveness of the fine is obvious on the face, maybe not from a legal perspective but certainly from a moral perspective. I've been working since I was 15 and a half years old, it's likely that I will work till I'm at least 75. In those 60 years of work I've calculated that I will make about $3M in constant dollars, which makes this award about 20% of my lifetime earnings. Does sharing a few songs justify essentially indentured servitude for 12 years?
There are 4 boxes to use in the defense of liberty: soap, ballot, jury, ammo. Use in that order. Starting now.
Just keep in mind that, while NYCL has a great deal of knowledge on these subjects, his opinions have been proven to be very optimistic in the past...
It may wind up being the RIAA that's going to "need an appeal".
That would be good news indeed, can you expound on that a little?
Liability is a foregone conclusion, since Mr. Tenenbaum formally "admitted liability" at the trial. But damages are not. If the Court follows traditional copyright law principles, it will hold that there was no evidence in the record from which any statutory damages award beyond $750 per infringed work is permissible, thus limiting the award to a maximum of $18,000 under copyright law. And if the Court then follows traditional constitutional principles, it will hold that any recovery beyond $1.40 per infringed work (or total of $33.60) is unconstitutional. If the RIAA obtains a monetary damages award of $33.60 I would expect Mr. Tenenbaum to refrain from appealing, and I would expect the RIAA to be the one to file an appeal.
I think the RIAA's argument that statutory damages need not be constitutionally limited to the price of the songs is a good one, and the argument that statutory damages in excess of proven damages are unconstitutional is a bad one. Congress expressly allowed statutory damages as an alternative to actual damages to cover situations where proof of actual damages was too vague or speculative. That applies here, and certainly includes a claim that the only damages were $1.40 per song due to Tenenbaum not purchasing them. He was uploading them too - his violation of copyright wasn't just making a single copy for his own use, but rather distributing them to others. Thus, the damages would include $1.40 for every he uploaded each song to, and everyone they then uploaded the song to. That's going to be much higher than a total of $33.60. How much higher? We don't know - it's too speculative to say, which is why Congress put in the statutory damage provisions.
Additionally, your argument that the court should limit them to $750 per work is unsupported. The statutory range of $750-30k per work is a question of fact for the jury. The judge can't overrule that within the range without evidence of clear error - he could limit the decision if it was at the $150k/work willful level, for example, or he could limit it to $200/work for innocent infringement (he can't, actually, in this case, on these facts), but he can't say "the range is right, but I'm using the lower limit". There's simply no basis for it.
No, the best argument is one that they apparently failed to raise - the jury was presented with an instruction, number 110, that willful infringement requires only knowledge or reckless disregard of the copyright, and thus damages up to $150k per work are available, thus leading the jury to pick the $18,000 figure. The RIAA briefed in support of this instruction, and I can't find a copy of the opposition brief or the ruling, but the final jury instruction was exactly what the RIAA wanted. I believe it's incorrect as a matter of law, because their interpretation expressly removes the $750-30k range of damages from ever being able to be applied. Instead, it would be $200, or $150k, but that's not what Congress said. They're misreading and misapplying both the case law and the statute.
Incidentally, I was the one who sent you an email a month ago, discussing a paper I'm writing and asking if anyone had argued this point. I haven't found anything yet. Paper's about half done and will be done before January 4th. Any interest in reviewing it and potentially filing an Amicus Brief?
"Does jaywalking justify the death penalty?" "Does walking 10 extra metres make you life so unbearable that you can't continue?"
Of course, there are always exceptions. For example, Jane Roe had already given birth by the time of the ruling in Roe v. Wade, so her case was moot. The Supreme Court made a decision anyway, because it would be difficult to complete a court case during the period of a woman's pregnancy.
As other's have mentioned, the first question is it fair use to download an mp3 of a cd/song that you have already purchased?
But, there's yet a further step, where time-shifting is allowed in the TV/video world for recording on a VCR. I presume that same shifting is permitted for recording off of the radio. Therefore, are you allowed to download/posses an mp3 of a song that you heard on the radio?
There's a slippery slope that I don't think we should say anyone can download content that's been played on some radio station at some point, but a lawyer would have a difficult time claiming that you hadn't already heard a collection of top-40 songs. And this also wouldn't excuse someone that turns around and shares the content with others.
IANAL, as I will doubtless demonstrate, but I'm curious about some of the legal principles here.
Statutory damages as an alternative to actual damages makes sense, but is there any legal expectation that the statutory damages will be roughly proportional to the actual damages?
Yes, and no. In the copyright acts of 1790 through 1976, Congress talked about statutory damages as non-punitive - i.e. roughly proportional to the actual damages. However, in the 1976 Act and the more recent amendments and acts including the DMCA, Congress talked about the deterrent effect, particularly where software, music, and movies can be copied with a click of a button.
Under the current law, the damages are supposed to be roughly proportional - a best estimate, if you will - but also have deterrent effect, meaning they can be higher.
Add to this a crucial point which Ray and Tenenbaum's attorneys disregard in discussing damage levels as being $1.40 per work: under copyright, damages include not just the cost to the infringer of a license, but the lost profits to the copyright owner. This is explicit, even going back to the original 1790 Act - damages include not just the infringer's profits (which may be zero, as here where Tenenbaum isn't charging for copies), but also the lost sales to the owner due to the work now being widely distributed royalty-free. In the 1790 Act, statutory damages were one dollar per page - that's way more than the cost, particularly back when the entire book may cost only a few dollars.
Assuming treble damages, the minimum damages of $750 imply that a reasonable low guess to the damages from downloading one song and uploading in the process would be $250, or $75 if we go to the ten-times limit the Supreme Court said they'd almost certainly not allow.
Treble damages aren't actually an issue. There's no explicit provision for them in the copyright act.
One important thing to note when considering the lower limit of $750 - that's "per work". So, if you make a single copy of a song, it's $750. If you upload that copy to 10 people, it's still only $750. If that copy ends up downloaded by tens of thousands of people... it's still $750. That's what the statutory damage levels are trying to do - the copyright owner doesn't have to run around and find every single person that downloaded a song or bought a copy of your illegally-reprinted book. Instead, we can just assume you made a number of copies causing about that much in damages. If you didn't, the plaintiff gets a small windfall - but if you did, the defendant is relieved of a much higher liability.
It seems to me that these damages are intended as straight punishment, since they're way out of line with any halfway reasonable estimate of damages multiplied by any acceptable multiplier. In that case, I'd be a lot more comfortable with them if they were treated as part of criminal law, with such protections as "no reasonable doubt" rather than "preponderance of the evidence".
See my discussion above - they're not actually that far out of line. As for criminal law, the copyright act does actually have a criminal provision... and this is what the RIAA is misreading:
17 USC 506 makes it a misdemeanor (meaning up to a year in jail) for willfully infringing a copyright for purposes of commercial or private financial gain; or by "making it available on a computer network". Sounds a bit familiar, huh?
Specifically, the statutory damage provisions include $200 for "innocent infringement", $750-30,000 normally, and "up to $150,000 per work for willful infringement". Now, the RIAA defined "willful" as essentially "anything not innocent", which makes that middle $750-30k range useless. And unbelievably, Tenenbaum never argued that one, or at least not well.
My argument (and the paper I'm drafting) is that the jury shouldn't have been asked to come up with a per-work damage amount of "up to $150k", but rather that they should have been presented with the $750-30k range... They likely wouldn't have picked 18k then, but something lower, which would have been more reasonable.
Statutory damages as an alternative to actual damages makes sense, but is there any legal expectation that the statutory damages will be roughly proportional to the actual damages?
Yes. They are supposed to be reasonably proportioned to the actual damages. Usually that plays out to 2 to 4 times the actual damages.
Ray Beckerman +5 Insightful
Your comment has a lot of fallacies in it. You are ignoring the large body of case law on proportionality of statutory damages; you are ignoring the fact that the Constitution takes precedence over any statute; you are ignoring the Supreme Court's caselaw on "punitive awards"; you are implying there is some prohibition against "uploading", while there is none.... what there is is a prohibition against 'distributing copies to the public by sale or other transfer of ownership, or by rental, lease or lending', none of which have been proven; you are suggesting that damages can be based on speculation, which is not the case; you are assuming that an unauthorized download = a lost sale, which is not the case.
Ray Beckerman +5 Insightful
Except I didn't need the court to suggest to me it might be legal to rip my music off CDs I purchased to whatever format I choose. If some law made it illegal then there is something wrong with the law.